MONDAY, DECEMBER 10, 2001

Extraordinary measures

Repressive legislation reflects popular human reactions to the violence witnessed in New York. But fear, revenge, retribution, and the like should not control a society’s response to extraordinary (horrific) events. When I was growing up, my post–World War II Jewish household on the East Coast of the United States of America provided the kind of security that left little room for notions like the Holocaust, Japanese internment, and slavery. Discovering the struggles of African Americans after the Civil War was shocking. The first book I remember reading, more than once, was the story of Harriet Tubman and the Underground Railroad. Soon thereafter, I began to read every book available on the rise and fall of the Third Reich. How could my parents’ contemporaries have been branded with numbers and led to their deaths in what my father called “the showers”?

During high school, as I witnessed a police officer’s violent response to a young college student’s taunting reference to “pigs,” I realized that government protection of individual rights, civil liberties, and constitutional guarantees formed the foundation of the secure environment within which I was growing up.

A legal education seemed basic. Everyone should know the constitutional security blanket that protects them from governmental repression.

Before September 11, 2001 the path to security seemed clear. Any repression of constitutional liberties must be fought to prevent the kind of evils a society can perpetrate against its least popular members.

Although a society is made up of individuals, a government must not react with human emotion. The desire to kill an individual who commits violence against you or your sister is a natural human response — for an individual. Society or government must react differently. If our government reacts as an individual, we revert to the doctrine of survival of the fittest and freedoms are destroyed.

Recently a New York Times article cited interviews with inner-city African Americans in Harlem who felt that the government would be justified in rounding up Arabs or Muslim Americans and holding them without trial. Doesn’t such a position suggest racial profiling, which is justifiably abhorred by civil libertarians?

The government is obligated to protect us from attack. Preventing hijackers from boarding airplanes with weapons or bombs has long been the goal of airport security. But the failures of airport security on September 11, 2001 cannot result in the abrogation of the Bill of Rights.

Congress and the Executive Branch must engage in a very delicate balancing act. The repressive legislation passed since September 11, 2001 is not going to disappear with the demise of the Taliban, Al Qaeda, and Osama Bin Laden. Americans will have to live with whatever restrictive measures are enacted by the current leaders of our nation, including George W. Bush and John Ashcroft.

Searching the bags of everyone at the airport, if deemed appropriate by the government, may be a legitimate tactic. However, rounding up people from the Middle East, Muslims, or suspected affiliates with the Middle East and detaining them without a trial or a court hearing cannot be tolerated. The government has begun to detain people solely on the basis of racial profiling and without identifying them publicly. Proposals to hold secret tribunals to try suspected terrorists will have a long-lasting impact on our American system of jurisprudence.

Most of our Arab-American friends are successful business people: they pay taxes and are law-abiding citizens. The recent murder of a Yemenite storeowner in Fresno indicates the irrational — even if emotionally understandable — response of individual “patriotic” Americans.

It is the responsibility of the government to protect us from foreign terrorists. Likewise, it is the government’s responsibility to protect us from our own illegal responses.

My security of growing up in America in the 1950s and 1960s resulted from our government’s protection of individual freedoms, including free speech and a fair hearing to redress grievances. In the past, temporary measures, such as the suspension of habeas corpus by Abraham Lincoln during the insurrection of the South, have been instituted at a time when active warfare threatened the destruction of our Union.

Although the threat presented by the September 11, 2001 events does call for additional security measures, the erosion of our constitutional freedoms can result in a holocaust of our own. The identification of racial or religious groups for disparate treatment can only result in evils we all consider obvious. The enslavement of African Americans or the governmental genocide of Jews is no different from the detention of Arab Americans or American Muslims solely on the basis of race or religion.

As the government embarks on the noble effort of increasing our security and protecting us against terrorists, the balance of securing civil liberties and constitutional freedoms must be protected.

Repressive legislation arising from fear, intimidation, or special interests cannot be tolerated.

A society must be judged by the way it treats its least popular members. America has always been a shining star in this area. The events of September 11 cannot shake the foundation upon which this government and system of life rest.

People say, “Extraordinary times require extraordinary measures.” It takes extraordinary fortitude to protect civil liberties in early 21^st-century America. God help our leaders to protect us from foreign enemies and from the evils within. The terrorists must not prevail.

Eric Safire is a San Francisco attorney (www.safirelaw.com).